According to Austrian property law , easements or servitutes are limited real rights of use to third-party property whose owner is obliged to tolerate or refrain from doing something . This is the difference to the real load , at which something has to be made active . Easements are, for example, the right to use a path or the right of usufruct .
The basis is the General Civil Code (ABGB), which - unchanged since 1811, in force from January 1, 1812 - contains the following definition:
“ § 472. The right of servitude binds an owner to tolerate or omit something for the benefit of another in consideration of his cause. It is a real right, effective against every owner of the subservient thing. "
The servitutes can be divided into easements and personal easements:
"§ 473. If the right of easement is linked to the possession of a piece of land for its more advantageous or convenient use; thus an easement arises; besides that, the servitude is personal. "
Title and mode are required. Mainly legal transactions come into question as titles, but also legal facts (e.g. in the case of acquisition). Mode is the type of transmission, e.g. B. the entry of a contract or its effects in the land register.
Easements of land are to be entered in the land register (principle of registration). However, if an easement is "obvious" (easily recognizable in nature, e.g. a mountain hut or an access road), the purchaser of a property must accept it against him, even if it is not entered in the land register.
Easements must be exercised in such a way that the burden is as low as possible. They may not be extended without authorization - the easement of walking over a path does not also include that of driving.
If an easement is disrupted, a servitude action ( actio negatoria - § 523 ABGB) can be brought. Easements are real rights and can be asserted against anyone.
- by the destruction of the serving cause
- by waiver
- by acquisition of property in good faith
- by expropriation
- possibly due to the passage of time.
A special case exists when the right from the easement and the obligations to tolerate coincide in one person: For example, if a neighbor inherits a property on which an easement is entered in favor of his own property. Then the easement expires. However, it comes back to life when the encumbered property is sold and the easement is (still) entered in the land register.
Statute of limitations
Easements become statute-barred if they are not used (after 30 or 40 years) or if they are not asserted if they object (after 3 years).
The right of servitude occurs frequently in agriculture and forestry. It includes the right to walk, drive, build and maintain wells, lay pipes, drive cattle, transport wood, etc. But easements are not uncommon in other areas of life as well: B. the right to keep a neighboring property as a forest, to build a hut on a property, to operate a quarry, not to exercise a certain trade, etc. There are almost no limits to easements, including housing rights, old-age security (Ausgedinge), marriage contracts, etc. . can encumber a property as an easement.
"Reforestation" or "Inforestation" is a special case:
As part of the reorganization of rural property in the middle of the 19th century, large areas of forest, especially in the Salzkammergut, were nationalized. The salt pans of the monarchy required vast quantities of wood, so drastic measures were taken and entire forests in the area were de-privatized. In consideration of the local population, these were "forested", that is, every farmhouse, every town house and every commercial enterprise received a certain amount of timber, firewood, fence wood, etc. The scope varied depending on the negotiating skills of the people, a total of four regulatory negotiations took place. In the first regulatory comparison, the population was fobbed off with relatively few wood procurement rights, while negotiating and stubborn farmers, who only agreed in the fourth regulatory comparison, were even awarded forest ownership. The servitude right is recorded in detail in the form of a document and is, for example, expropriated by the state. These reforestation rights are very popular and can be sold to private individuals and companies. In addition, they can be redeemed for the monetary value of the Austrian Federal Forests (as the caretaker of the state-owned land). There are several regional reforestation cooperatives, which in turn are organized in a main cooperative. These cooperatives represent those entitled to forest in their interests vis-à-vis the federal forests (as representatives of the public sector). Even today there are thousands of active servitude rights for the forests of the Austrian Federal Forests.
“The erroneous view that“ Servitut ”is grammatically neuter sex can only be traced back to a dwindling knowledge of Latin on the one hand and, on the other hand, the lack of knowledge of Austrian legal language, which unfortunately also exists among authors of dictionaries. [...] In view of this finding, the judging Senate sees no reason to agree with the incorrect view of legal laypeople and to deviate from the feminine form of "servitude", which has been based on the unbroken legal tradition since antiquity, which is also used in grammatical gender with the corresponding German legal term "Easement" matches. "
- Helmut Koziol , Andreas Kletečka, Rudolf Welser : Outline of civil law. Volume I: General Part. Property law, family law. , 14th edition, MANZ Verlag Wien, Vienna 2014, ISBN 978-3-214-14710-5 .
- Gert Iro: Property Law - Civil Law Volume IV . 6th edition. Verlag Österreich, Vienna 2016, ISBN 978-3-7046-7589-7 .
- Andreas Riedler : Study Concept Civil Law V - Property Law . 4th edition. LexisNexis, Vienna 2015, ISBN 978-3-7007-6314-7 .
- Supreme Court, z. B. December 18, 1998 decisions 6 Ob 79 / 98f; 8 Ob 16 / 00m; 5 Ob 270 / 03x; 6 Ob 95 / 04w: The fact that an easement is evident breaks the principle of registration. This also applies to the purchaser of a property in the foreclosure auction, who must then allow the servitude that has not been booked to apply against him if it would have been given priority within the meaning of Section 150 of the enforcement order, based on its creation. In the case of an easement resulting from the division of a property, its rank is based on the division carried out in the books.
- GZ 3Ob125 / 05m . Supreme Court (Austria). Retrieved March 13, 2019.